LPA No.654/2010 Page 1 of 44

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved on: September 15, 2015

Judgment Delivered on: October 12, 2015

+ LPA 654/2010

KRISHAN GOPAL & ORS. ..... Appellants

Represented by: Ms.Asha Jain Madan, Advocate

versus

ONGC & ANR. ..... Respondents

Represented by: Mr.Sanjay Jain, ASG instructed by

Ms.Bhavan Dhami, Ms.Shreya Sinha

and Mr.Shrushth Jain, Advocates

CORAM:

HON'BLE MR. JUSTICE PRADEEP NANDRAJOG

HON'BLE MS. JUSTICE MUKTA GUPTA

PRADEEP NANDRAJOG, J.

1. The controversy involved in the present intra-court appeal relates to

regularization of services of (fifteen) ‘contingent employees’ engaged by Oil

& Natural Gas Commission (hereinafter referred to as the ‘ONGC’).

2. ONGC issued Standing Orders on July 15, 1962 concerning

contingent employees employed in various units of ONGC, the relevant

portion whereof reads as under:-

“1. Application and date of commencement: These orders

shall come into force on 15.7.1962 and shall apply to all

workmen called contingent employees employed in the various

units of the Oil and Natural Gas Commission (hereinafter

referred to as the Commission). They shall not apply to regular

employee of the Commission to whom Fundamental and

Supplementary Rules, Central Civil Services (Classification,

LPA No.654/2010 Page 2 of 44

Control and Appeal) Rules, Central Civil Services (Temporary

Services) Rules, Revised Leave Rules and Civil Service

Regulations have been extended.

2. (i) Classification of Workmen: The contingent employee of

the Commission shall hereafter be classified as:-

(a) Temporary; and

(b) Casual.

ii. A workman who has been on the rolls of the Commission

and has put in not less than 180 days of attendance in any

period of 12 consecutive months shall be temporary workman,

provided that a temporary workman who has put in not less

than 240 days and who possesses the minimum qualification

prescribed by the Commission may be considered for

conversion as regular employee.

iii. A workman who is neither temporary nor regular shall

be considered as casual workman.” (Emphasis Supplied)

3. ONGC engaged large number of persons between the years 1984 to

1986 as contingent employees to render services as Helper, Security Guard,

Storekeeper, Khalasi, Attendant, Mechanic, Operator, Gardener etc.

(essentially Class III and IV posts) at Jwalamukhi Project undertaken by

ONGC in the State of Himachal Pradesh.

4. In view of the fact that Jwalamukhi Project undertaken by ONGC was

to end in the year 1993 a decision was taken by ONGC to disengage the said

contingent employees. Faced with the threat of their services being

disengaged, thirty-nine contingent employees filed a writ petition, being

CWP No.1516/1989 before High Court of Himachal Pradesh at Shimla;

essentially seeking regularization of their services.

LPA No.654/2010 Page 3 of 44

5. Vide order dated September 21, 1993 the High Court of Himachal

Pradesh dismissed the said writ petition filed by the contingent employees,

which order reads as under:-

“We need not go into the detailed facts of this case. Suffice it to

say that the petitioners have not only claimed equal wages for

equal work, but also regularization of their services by the

respondents. The respondents have denied the case of the

petitioner for regularization alleging that the petitioners belong

to contingent staff of the respondents and their services were

likely to end with the closure of the project. Therefore, for such

a staff, regularization is not possible. As to equal wages for

equal work, the plea of respondents is that the petitioners are

not entitled to the same.

During the pendency of this writ petition, this Court directed

the respondents to consider the case of the petitioners for equal

wages for equal work in the light of numerous Apex Court‟s

decisions recorded in this Court‟s order dated 6.1.1988.

Accordingly, the matter was considered and petitioners were

paid equal to their counter-parts right from the date of this

order. Thereafter, CMP 1541 of 1992 was moved, claiming

revision in the wages. This application was decided on

18.11.1992 and the respondents were directed to pay the

revised wages to the petitioners as well. As a matter of fact,

these wages were paid from the date of the order and note

dated 1.10.1991 as claimed.

In the application of the petitioners, we directed the

respondents not only to retain the services of the petitioners but

also directed that their service conditions will not be changed.

This order is in existence till date.

We have heard the learned counsel for the parties.

Shri K.D. Sood, learned counsel for the petitioners vehemently

contended that the respondents want to retrench their services,

since they moved this Court, claiming certain reliefs. Therefore,

LPA No.654/2010 Page 4 of 44

it is punitive and the respondents should be directed not only to

retain the services of the petitioners but also to regularize their

services and pay them wages, equal to others who are regular.

S/Sh. Chhabil Dass and I.S. Singhu, learned counsel for the

respondents have explained to us the exact position about the

engagement of the petitioners only on the basis of this Court

order, since, otherwise there is no work available with the

respondents to continue the service of the petitioners. It was

also contended that information was sought from other regions

also where the petitioners could be re-engaged, but it has been

found that this cannot be done. Finally, it was submitted by the

learned counsel for the respondents that it would make a list of

the workers being retrenched by the respondents and if work is

available, the same would be offered to the petitioners

according to their seniority and qualifications/skill, as per the

requirement of the respondents.

We made earnest efforts to find out whether the services of the

petitioners could be retained either at the present place of

posting or anywhere also, but we are fully satisfied with the

explanation offered by the respondents that it is not possible to

do so, since the project is being wound up and all efforts to

locate hydrocarbon failed many times. It is also pointed out that

on possibly be engaged in outside projects where locals are to

be preferred. In these circumstances, it is not justifiable to

compel the respondents to retain the services of the petitioners,

especially when they have no work available to engage the

petitioners. Paying them without doing any work would cause

not only loss to the respondents but also to the nation

ultimately.

Therefore, the petition is dismissed and all interim orders are

vacated.

Before parting with the case, we may observe that the

respondents would consider the case of the petitioners for re-

engagement as and when some kind of work is available, as per

the statement given above. We repeat here the assurance of the

LPA No.654/2010 Page 5 of 44

learned counsel for the respondents that if ever work is

available with the respondents in northern region and the

petitioners are qualified for the same, preference would be

given to them according to their seniority and job requirement.

The respondents would decide the case of the petitioners for

revised pay from 1.10.1991 to 17.11.1992 within a period of

two months and same to the petitioners.

Shri K.D. Sood submits that the respondents be asked to give

the petitioners experience certificate. Learned counsel for the

respondents see no difficulty in doing this.

The writ petition is disposed of in the aforesaid terms, with no

order as to costs.

A copy of this order be placed in Civil Writ Petition No.891 of

1993, Ram Asra Vs. O.N.G.C. which also stands decided by this

order. (Emphasis Supplied)

6. In the year 1993 thirty-two contingent employees whose services

were engaged by ONGC for its project in the State of Punjab filed a writ

petition, being CWP No.7673/1993 before the High Court of Punjab and

Haryana at Chandigarh essentially seeking regularization of their services

and the same was dismissed vide order dated September 27, 1993.

7. Aggrieved by the orders dated September 21, 1993 and September 27,

1993 passed by the High Courts of Himachal Pradesh and Punjab and

Haryana respectively, declining prayer for regularization of services, the

contingent employees filed Petitions for Special Leave to Appeal before the

Supreme Court which were registered as SLP (C) Nos.17359/1993 and

17360-61/1993, which were dismissed vide order(s) dated November 19,

1993.

8. Thereafter a few contingent employees, (including some employees

LPA No.654/2010 Page 6 of 44

who were parties in the writ petitions filed before the High Court of

Himachal Pradesh and Punjab and Haryana) filed a writ petition before the

Supreme Court which was registered as W.P.(C) No.D7385/2001 seeking

regularization of their services which petition was dismissed as withdrawn

vide order dated May 08, 2001. Being relevant, we note that order dated

May 08, 2001 reads as under:-

“Mr. R.K. Jain, learned senior counsel appearing for the

petitioners prays to withdraw the petition. Such prayer is

granted. The writ petition is dismissed as withdrawn. This order

will not preclude Mr. Jain‟s clients, however, to move afresh

before the Delhi High Court.” (Emphasis Supplied)

9. In these circumstances, twenty-four contingent employees filed a writ

petition under Article 226 of Constitution of India in this Court which was

registered as W.P. (C) No.6562/2001. The necessary details of twenty four

contingent employees who filed W.P. (C) No.6562/2001 would be as under:-

S. No. Name of

petitioner

Whether

party in

writ

petition

filed before

High Court

of

Himachal

Pradesh

Whether

party in

writ

petition

filed before

High Court

of Punjab

and

Haryana

Whether

party in

writ

petition

filed

before

Supreme

Court

Whether

party in

present

intra-court

appeal

1. Prem Nath No Yes Yes No

2. Krishan Gopal No Yes Yes Yes

3. Bir-Bahadur No Yes Yes No

4. Sushil Kumar Yes No Yes Yes

5. Babu Ram Yes No Yes Yes

6. Vijay Kumar No Yes Yes Yes

7. Dharam Pal No Yes Yes Yes

8. Surinder No Yes Yes Yes

LPA No.654/2010 Page 7 of 44

Kumar

9. Gunadhar

Dutta

No Yes Yes Yes

10. Sohan Singh No Yes Yes Yes

11. Mohinder

Singh

Yes No Yes No

12. Mengha Singh No Yes Yes No

13. Mali Ram No Yes Yes No

14. Kamal Singh No Yes Yes No

15. Manohar Lal Yes No Yes No

16. Madan Lal Yes No Yes No

17. Makhan Lal Yes No Yes No

18. Shakti Chand Yes No Yes Yes

19. Ajit Kumar No Yes Yes Yes

20. Surinder

Kumar

No Yes Yes Yes

21. Jagdev Singh Yes No Yes Yes

22. Mohan Lal No Yes Yes Yes

23. Tara Chand No Yes Yes Yes

24. Prem Chand No Yes Yes Yes

10. In a nutshell, the case pleaded by the said twenty-four contingent

employees in the writ petition filed in this Court could be summarized:-

(a) Petitioners have rendered more than fifteen years of (unblemished)

service in ONGC and thus are entitled for regularization of their services.

(b) Petitioners are entitled for regularization of their services in view of

provisions clause 2(ii) of Standing Order dated July 15, 1962 dealing with

contingent employees since the petitioners have put in more than 240 days

of service in a period of twelve consecutive months and also possess

minimum qualifications prescribed by ONGC for the jobs (class IV posts)

performed by them.

(c) Petitioners are entitled for regularization of their services on account

LPA No.654/2010 Page 8 of 44

of permanent and perennial nature of jobs performed by them.

(d) ONGC did not disengage petitioners and continued with services of

petitioners at its various projects at Jammu and Madhopur (Punjab) even

after passing of orders dated September 21, 1993 and September 27, 1993

by the High Courts of Himachal Pradesh and Punjab and Haryana

respectively.

(e) On May 29, 1989 a settlement was arrived between ONGC and 31

contingent employees (including some of the petitioners) to the effect that

the services of eight contingent employees were regularized and „remaining

twenty three contingent employees (including some of the petitioners) will be

given preference at the time of recruitment for appointment for the post of

class III and class IV provided they fulfill the requisite qualification and

experience as laid down under R & P Regulations of ONGC and recruitment

action will be initiated as and when vacancies arise and in an expeditious

manner.‟

(f) ONGC regularized services of such contingent employees who had

worked 240 days or more in a year in ONGC at Dehra Dun on October 13,

1989. Thus, ONGC had meted discriminatory treatment to petitioner i.e.

contingent employees posted at Jwalamukhi, Jammu and Madhopur vis-à-

vis the contingent employees who were posted at Dehra Dun.

(g) The statement made by ONGC before High Court of Himachal

Pradesh that no work is available with ONGC to continue with the services

of the petitioners was fallacious.

(h) The Central Government issued a notification on September 08, 1994

prohibiting employment of contract labour to perform the jobs in ONGC

which were being performed by the petitioners which conclusively

LPA No.654/2010 Page 9 of 44

establishes that jobs performed by petitioners were of permanent and

perennial nature.

11. Before proceeding further, we note that petitioners placed reliance

upon (two) Office Notings dated May 27, 1998, Working Paper dated May

27, 1998 prepared by Head, Jammu Project, ONGC, Office Noting dated

April 16, 1999 prepared by Head, Jammu Office, ONGC and an Office Note

dated January 17, 2000 prepared by General Manager (E&S), ONGC and

Working Paper dated August 11, 2000 prepared by Manager (IE), ONGC.

12. The relevant portion of the first Office Noting dated May 27, 1998

reads as under:-

“Eight nos of contingent hands are employed at NRBC, Jammu

pieces 1986 and working as attendant. Details of employment

are as under:-

….

As the requirement is still persist, the above mentioned

contingent hands are required for the daily jobs.

The approval of Chairman and Managing Director is

required for the extension of above mentioned contingent

hands.”

13. The relevant portion of the second Office Noting dated May 27, 1998

reads as under:-

“Since 1986, Jammu Project has been utilizing services of 8

contingent hands for miscellaneous jobs in the office complex

and in Transit Accommodation. Since then, there has been no

change in exploratory/drilling activities at Jammu and such

requirement will persist as long as Project Office is maintained

at Jammu.

2. As per IX Plan (1997-2002), we propose to sequire

around 440 GLK of seismic data and drilling of one location

depending upon the leads. Keeping in view the exploration

LPA No.654/2010 Page 10 of 44

scenario, administrative approval of CMD for extension of

services of 8 contingent hands for one year i.e. from 1.4.98 to

31.3.99 is solicited.”

14. The relevant portion of the Working Paper dated July 24, 1998

prepared by Head, Jammu Project, ONGC reads as under:-

“CONCLUSION & RECOMMENDATIONS

i) There are total 76 contingent workers employed at

Dehradun Head Office (including 41 contingent workers in

question).

ii) As per the report of HRG (placed at Annexure-7) the

present total strength as assessed by HRG for Class IV

category at Hq. Dehradun is 407 against which the available

regular employees are 252. As per this assessment the gap

between requirement assessed and availability of regular

employees is 155. The said gap is met at present by deploying

76 numbers of contingent workers including 41 contingent

workers under review and through the contracts being awarded

from time to time.

iii) As per the legal requirement of Section 25 N of Industrial

Disputes Act and more particularly of „Form of notice‟ for

seeking permission for retrenchment of workmen, the reasons

for retrenchment have to be stated in the „Form of notice‟.

Accordingly, in the first instance, as per procedure, the persons

sought to be retrenched are required to be declared by the

Organization.

In view of the material record available, the Committee feels

that in order to retrench as per the legal requirement, condition

precedents for such retrenchment would be declaration of 41

contingent workers as surplus which cannot be met in the

instant case.

RECOMMENDATIONS

LPA No.654/2010 Page 11 of 44

In view of the fact that there is requirement of 407 workers in

the category of Class IV employees at Hqrs. Dehradun

including the Institutes as per assessment of HRG and the

available position of the work force against this number of 252

regular and 76 contingent, there still remains a gap of a further

requirement of 79, which is met at the moment through job

contract system. Accordingly, since the conditions precedent of

resorting to retrenchment i.e. declaration of surplus, is not

being met at this juncture, the retrenchment of the contingent

employees under review may not be possible and therefore their

services may not be dispensed with. Further the Committee

recommends that these workers (41) be redeployed for gainful

use of their services keeping in view the work assessment by

HRG.” (Emphasis Supplied)

15. The relevant portion of the Office Noting dated April 16, 1999

prepared by Head, Jammu Office, ONGC reads as under:-

“The case pertaining to extension of the services of eight

contingent hands working at Jammu from 1.4.1999 to

31.__.2000.

Earlier sanction which was accorded by Director (Personnel)

recommendations of DGM (E)/Head Jammu Project‟s expired

on 31.2.1999.

There is no change in status of the set up and the same

justification stands as on today.

….

b) As stated above, numerical analysis is not feasible for

various reasons. The continent bonus who were deployed about

12-13 years ago are being assigned jobs keeping in view their

capabilities and to effect economy in expenditure on the interest

of the Corporation. As detailed earlier, two contingent hand

continue to work in the Guest House, where these contingents

deployed for Guest House in shift wise to look after the guests

earlier we had workers in Guest House through a contractor.

LPA No.654/2010 Page 12 of 44

Similarly, the was contract for operation of the Generator but

was cancelled by deploying a contingent hand.

c) 3 (three) contingents, one each in P&A, TBG & F & A

are deployed for distribution among the different section, and

other miscellaneous office works arising off an ____. In

addition, one more contingent is deployed in finance to handle

the Diary – Dispatch of their section.”

16. The relevant portion of the Office Order dated January 17, 2000

prepared by General Manager (E&S), ONGC reads as under:-

“Subject: Exploratory Drilling at Sundernagar (H.P.)

In the 179th

Meeting of Executive Committee held on 6th

January, 2000, it has been decided to undertake exploratory

drilling in Sundernagar area of Himachal Pradesh by rig E-

2000-8 for which land acquisition and civil works have to be

undertaken as proposed in the agenda (a copy of minutes

179:09 enclosed.

….

It is requested that necessary action may kindly be taken

by all concerned for the implementation of the decision.”

17. The Working Paper dated August 11, 2000 prepared by the Manager

(IE), ONGC reads as under:-

“WORKING PAPER

As desired, the case has been reviewed and following is

submitted:-

(i) The case pertains to approval for continuance of 10

contingent workers in Madhopur stores for a period of 9

months w.e.f. 1.7.2000 to 31.3.2001. The approval for their

continuation upto 30.6.2000 exists at N/P-51.

(ii) Consequent to start of work for drilling activities for

Sunder Nagar location, the workload at Madhopur storeyard

LPA No.654/2010 Page 13 of 44

has increased. The storeyard is working as forward base rail

head stores for Sundernagar.

(iii) The details of present utilization and assessment are

given at N/S-64. The utilization details indicate increased

utilization trend for material handling workload & vehicle

utilization. The contingents are also being utilized for DG set

maintenance & pump house operation which was earlier being

done through contract. There are no such category regular

personnel in Jammu who could be redeployed for these jobs.

(iv) Keeping above in view and the likely increase of

activities in Jammu region, the continuance of contingent

workers for a period of 9 months w.e.f. 1.7.2000 as proposed

prepage may be agreed to.”

18. Per contra, the stand taken by the respondents to the writ petition filed

by the contingent workers in this Court could be summarized as under:-

(a) The writ petition filed by the petitioners seeking relief of

regularization of their services with ONGC deserves to be dismissed for the

reason the earlier writ petition(s) filed by petitioners before the High Courts

of Himachal Pradesh and Punjab and Haryana seeking same relief of

regularization of their services and based on same cause of action were

dismissed, more particularly when the order(s) of dismissal of earlier

petitions had attained finality inasmuch as Special Leave to Appeal(s) filed

by the petitioners assailing legality of said (dismissal) orders stood

dismissed by the Supreme Court.

(b) Petitioners were employed by ONGC in connection with its works at

Northern Region; the work of ONGC in Northern Region was mainly

exploratory and thus temporary in nature and governed by Petroleum

Exploration License (PEL) granted to ONGC by the Government. The only

LPA No.654/2010 Page 14 of 44

establishments of ONGC in Northern Region are: - (i) establishment at

Jammu and Kashmir; (ii) establishment at Himachal Pradesh; and (iii) store

yard at Madhopur, Punjab. The PEL granted to ONGC in Jammu and

Kashmir and Himachal Pradesh expired in the years 2002 and 2003

respectively and efforts were re-grant of same did not fructify. The store

yard at Madhopur was also required to be wound up owing to works in

Jammu and Kashmir and Himachal Pradesh coming to an end. In these

circumstances, ONGC could not have considered regularization of services

of petitioners due to non-availability of vacancy in northern region for

availability of vacancy is sine qua non for conversion of contingent

employee into a regular one under the Standing Orders dealing with

contingent employees issued by ONGC.

(c) Petitioners being contingent employees cannot claim regularization of

their services in view of the law laid down by the Constitution Bench of

Supreme Court in the decision reported as (2006) 4 SCC 1 Secretary, State

of Karnataka vs. Uma Devi.

(d) The petitioners are not entitled for regularization of their services in

view of clear prescription contained in Office Order dated July 16, 1991

issued by ONGC dealing with contingent employees that „no right shall

accrue to contingent workers for any regular job in ONGC‟.

19. Before proceeding further, it would be apposite to note the following

portion of Office Order dated July 16, 1991:-

“1. Appointment:

1.1 Appointment of contingent employees should be made on

„term appointment‟ basis, i.e. from one specified date to

another specified date. A specimen copy of the appointment

LPA No.654/2010 Page 15 of 44

letter is enclosed for information and guidance at Annexure „I‟.

In the appointment letter it should be specifically mentioned

that appointment will stand terminated on the expiry of the

expiry of the period mentioned in the appointment letter. No

extension, in any case, without the specific written approval of

the competent authority. Any violation of the instructions by an

officer will render him liable for disciplinary action.

1.5 For temporary & intermittent work:

Since the appointment of contingent workers is made for a work

of temporary and intermittent nature, no right shall accrue to

him for any regular job in ONGC. Management may, however,

consider his regularization subject to availability of vacancies

provided further that such contingent employee possess the

prescribed qualifications, experience, age requirement and

other requirements laid down in the ONGC R & P

Regulations/orders as applicable from time through a valid

selection process.

4. Regularization of services:

4.1 The service conditions of contingent employees, by and

large, are governed by the provisions of Certified Standing

Orders for contingent employees. Under Certified Standing

Orders, the contingent employees have been classified as

under:-

i) Casual – means those contingent employees who have

put in attendance upto 179 days in 12 consecutive months.

ii) Temporary – means those contingent employees who

have been on the rolls of the Commission and have put in not

less than 180 days of attendance in any period of 12

consecutive months provided that a temporary workman who

has put in not less than 240 days and possesses the minimum

qualifications prescribed by the Commission, may be

LPA No.654/2010 Page 16 of 44

considered for conversion as a regular employee.

4.4 Such of the contingent employees can be absorbed

against regular posts provided they fulfill the following

criteria:-

i) they have completed 240 working days‟ service in the

commission in the 12 consecutive months

ii) they are registered with the Employment Exchange;

iii) they are held against regular posts;

iv) they possess requisite qualifications and experience etc.

laid down in the ONGC (R&P) Regulations;

v) no extra post will be created for absorption of the

contingent workers and no relaxation in the qualification will

be accorded;

vi) relaxation in the age limits upto 35 years for technical

cadres and 30 years for non-technical cadres may be

accorded.” (Emphasis Supplied)

20. During pendency of the writ petition, as directed by the learned Single

Judge of this Court before whom the writ petition was listed, ONGC filed

lists of contingent workers employed by it at Jammu and Madhopur as on

January 01, 1987.

21. Being relevant, we note following portion of the list of contingent

workers employed at Madhopur, filed by ONGC:-

“LIST OF CONTINGENT WORKERS AT MADHOPUR AS ON

01.01.1987

SL. NO. NAME

S/SHRI

DATE OF ENGAGEMENT

1. Prem Nath (Petitioner No.1) 14.12.1984

LPA No.654/2010 Page 17 of 44

2. Nand Kishore 14.12.1984

3. Vijay Kumar 14.12.1984

4. Mali Ram (Petitioner No.13) 1.8.1985

5. Bir Bahadur (Petitioner No.3) 25.10.1985

6. Krishan Gopal (Petitioner No.2) 25.10.1985

7. Babu Ram (Petitioner No.5) 2.11.1985

8. Nihal Sing 8.11.1985

9. Manohar Lal (Petitioner No.15) 1.1.1985

10. Jagir Chand (Regularized as per

petitioners)

13.01.1986

11. Vijay Kumar 5.2.1986

12. Mahesh Chander 7.2.1986

13. Mandhir Verma 16.2.1986

14. Dharam Pal 3.3.1986

15. Des Raj 10.3.1986

16. Chet Ram 22.3.1986

17. Surinder Singh 22.4.1986

18. Surinder Kumar Duttana 22.4.1986

19. Tilak Raj 1.5.1986

20. Guna Dhar Dutta 1.5.1986

21. Gurbax Singh 15.5.1986

22. Ashok Kumar 3.8.1986

23. Sohan Singh 10.8.1986

24. Mohinder Singh 1.9.1986

25. Hans Raj 15.9.1986

26. Ram Pal 01.11.1986

27. Kamlesh Chander 01.11.1986

28. Kanshi Ram 14.11.1986”

22. Being relevant, we note the following portion of list of contingent

workers employed at Jammu, filed by ONGC. It reads as under:-

“LIST OF CONTINGENT WORKERS AT JAMMU AS ON 01.01.1987

SL. NO. NAME

S/SHRI

DATE OF

ENGAGEMENT

1. Mehnga Singh (Petitioner No.12) 23.07.85

2. Prem Sagar (Regularized as per 23.07.85

LPA No.654/2010 Page 18 of 44

petitioners)

3. Om Chand (Regularized as per

petitioners)

05.08.85

4. Kamal Singh (Petitioner No.14) 10.09.85

5. A.K. Jha (Regularized as per

petitioners)

29.09.85

6. Manoj Kumar (Regularized as per

petitioners)

01.10.85

7. R.K. Pokhriyal (Regularized as per

petitioners)

Nov.85

8. Maya Ram Balodi Nov.85

9. Satish Chander Nov.85

10 R.M. Pandey (Regularized as per

petitioners)

Nov.85

11. S.C. Pant (Regularized as per

petitioners)

Nov.85

12. D.C. Pandey (Regularized as per

petitioners)

Nov.85

13. N.K. Nautiyal (Regularized as per

petitioners)

21.01.85

14. A.S. Shukla (Regularized as per

petitioners)

Dec.85

15. Ajit Kumar (Petitioner No.9) 20.02.85

16. Surinder Kumar (Petitioner No.8) 01.01.86

17. Raj Kumar Sharma (Regularized as

per petitioners)

01.01.86

18. Johan 01.01.86

19. Jagdev Singh (Petitioner No.21) 01.01.86

20. Ram Adhar (Regularized as per

petitioners)

25.01.86

21. Shyam Lal 26.01.86

22. Rajesh Kaboo (Regularized as per

petitioners)

05.02.86

23. Miss Sarita Devi (Regularized as per

petitioners)

10.02.86

24. Gurdeep Singh 10.02.86

25. Mohan Lal (Petitioner No.22) 15.02.86

26. Kishore Kumar (Regularized as per 15.02.86

LPA No.654/2010 Page 19 of 44

petitioners)

27. Sher Singh 18.02.86

28. Madan Lal (Petitioner No.16) 18.02.86

29. Ram Lok 02.03.86

30. Kuldip Singh (Regularized as per

petitioners)

01.04.86

31. Kashmira Singh 01.05.86

32. Des Raj Rana 01.05.86

33. Tara Chand (Petitioner No.23) 01.05.86

34. Prem Chand (Petitioner No.14) 01.08.86

35. Bodh Raj Sharma 01.08.86”

23. On July 16, 2004 the petitioners filed an affidavit before the learned

Single Judge with respect to afore-noted (two) lists of contingent workers

filed by ONGC, the relevant portion whereof reads as under:-

“1. That I am one of the Petitioners in the above case and I

am well acquainted with the facts and circumstances of the case.

I am authorized to file the present reply affidavit on behalf of

other Petitioners also. I say that I have gone through the two

lists of the contingent workers working at Madhopur and Jammu

as on 1.1.87. I say that we are unable to judge the authenticity of

the said lists at our end as the lists are actually maintained in

the office of the respondent ONGC. Presuming the said lists to

be correct I submit that those junior to the petitioners have

already been regularized by the respondent ONGC. I submit that

workers at serial numbers 2-3, 5-8, 10-17, 20, 22, 23, 26, 30 in

the list pertaining to the contingent workers working at Jammu,

have already been regularized by the respondent ONGC.

Similarly the worker at serial number 10 in the list of contingent

workers pertaining to Madhopur has also been regularized. A

perusal of the said lists would indicate that the petitioner

workers are senior to most of the said employees who have

already been regularized. However the petitioners have been

ignored and not regularized till date. As regards the jammu list I

submit that the workers at Sl Nos. 1, 4, 15, 16, 19 and 25 are the

petitioners in the case who are senior to the workers who have

LPA No.654/2010 Page 20 of 44

already been regularized. As regards the Madhopur list I submit

that the workers at Sl Nos. 1, 4-7 and 9 are the petitioners in the

case who are senior to the worker at serial No. 10 i.e. Jagir

Chand who has already been regularized.”

(Emphasis Supplied)

24. In the year 2006, ONGC filed an affidavit in response to the affidavit

dated July 16, 2004 filed by the petitioners, the relevant portion whereof

reads as under:-

“3. It is denied that the workers at serial nos. 2-3, 5-8, 10-17,

20, 22, 23, 26, 30 in the list pertaining to contingent workers

working at Jammu and sl.no.10 in the list of Madhopur, have

already been regularized by the respondent ONGC as alleged.

It is submitted that the said workmen have not been regularized

but had participated in the recruitment exercises carried out for

various categories other than in Class IV. These workmen have

participated and have been selected and recruited to the post of

storekeeper (Grade III) or Assistant (Grade III)

4. As regards the Jammu list it is denied that these workers

at sl.no. 1, 4, 15, 16, 19 and 25 have already been regularized

as alleged. It is submitted that Shri Jagir Chand was also not

regularized. It is further submitted that the said workers have

not been regularized but recruited for vacancies advertised

through Employment Exchange from time to time after

participation in the selection process. It is further submitted

that Shri Jagir Chand (Sl.No.10) has been recruited as

storekeeper (Grade III).” (Emphasis Supplied)

25. During pendency of the writ petition, on July 01, 2004, ONGC

transferred petitioners Nos.4, 8, 9, 12, 13, 14, 17 and 18 from Jammu to

Frontier Basin, Jammu.

26. To complete factual narratives, we note that on February 06, 2006 a

decision was taken by ONGC to retrench sixteen petitioners; eleven of

LPA No.654/2010 Page 21 of 44

whom were deployed at Madhopur and five of whom were at Dehradun.

27. Immediately thereafter the petitioners filed an application before the

learned Single Judge of this Court seeking stay on their (proposed)

retrenchment. Significantly, the petitioners had filed copies of Working

Papers dated June 10, 2005 and January 03, 2006 prepared by DCLA,

ONGC respectively HR Department, ONGC to demonstrate that the

petitioners deployed at Dehradun are being illegally retrenched on the

alleged ground of they being surplus at Frontier Basin, Dehradun, inasmuch

as ONGC has the requirement of contingent employees at Jhirna, a site in

Frontier Basin, Dehradun.

28. The relevant extract of Working Paper dated June 10, 2005 of ONGC

relied upon by the petitioners reads as under:-

“WORKING PAPER

This is with reference to the note of Incharge HR/ER on

prepage seeking the advice on the course of action to be taken

against the contingent workers of Frontier Basin.

Copy of various correspondence from various files placed

opposite and the approval of Director (HR) approval 18.5.04

for redeployment by way of interim measure, the following facts

are emerged:

1. The period of redeployment of surplus contingent

workers at Dehradun who were idling at Jammu is not

indicated in the file.

In this context, it is brought to the notice of Basin and others

that the court case CWP No.6562/01 Prem Nath Vs. ONGC

pending before High Court Delhi filed by the contingent

workers of Jammu wherein following directions were sought:

1. ONGC to regularize the service with consequential

LPA No.654/2010 Page 22 of 44

benefits.

2. Restraining respondents ONGC from terminating the

services of workmen.

3. Payment of equal wages and other service benefits as are

being given to other regular employees performing similar

work.

4. Any other relief deemed fit by this Court.

The case is pending since Nov. 2001 (illegible)

Since the work and requirement of contingent workers at

Jammu, it is becoming difficult to contest the case in court

when there is decreasing requirement/no requirement by

Frontier Basin of the above said contingent workers and they

are being carried forward/deployed and more so when Jammu

Office has also been closed.

In the light of above facts and circumstances, an administrative

decision/review is required to be taken regarding the

continuation/redeployment of the contingent workers when the

Jammu Office is already closed. Any delay in taking the

decision will adversely affect the case which is coming up for

hearing on 25th July, 2005. The course of action will be decided

after administrative decision is taken b the Frontier Basin

regarding the continuation/redeployment of the contingent

workers keeping in view the fact that the Jammu Office is

closed.”

29. The relevant extract of the Working Paper dated January 03, 2006

prepared by HR Department, ONGC reads as under:-

“The new Drill site at Jhirna has been released. As per letter

dt. 25.7.05 from HDS, Requirements of 21 unskilled labour per

day is required. The categories requirements is as under:-

LPA No.654/2010 Page 23 of 44

Mud labour – 04 nos. per shift (8 hrs shift) X 3 = 12 nos. (for

loading/unloading mixing/filling of chemicals. Cleaning tanks,

cutting removal etc.)

Drilling contingent – 0 (illegible) nos. for three shifts (for

mechanical & electrical maintenance, housekeeping,

casting/tubular cleaning etc.)

Semi-skilled contingent – 01 no. per shift (8 hrs shift) x 3 = 03

nos.

(for operation & maintenance on SA gen-set & water pump)

As such 21 man days (illegible hrs shift per day) will be

required for drilling and geology, at present 18 no. of man days

as 8 hrs. shift per day is operative…..”

30. Vide order dated February 14, 2006 the Single Jude directed status

quo with respect to employment of petitioners with ONGC.

31. Vide impugned judgment and order dated June 01, 2010 the learned

Single Judge has dismissed the writ petition filed by the petitioners.

32. Briefly stated the reasons given by the learned Single Judge are as

under:-

(a) Petitioners cannot be allowed to re-litigate their claim for

regularization of services when such claim was rejected by High Courts of

Himachal Pradesh and Punjab and Haryana in the earlier writ petitions filed

by the petitioners, more so when the orders dismissing the earlier writ

petitions filed by the petitioners was affirmed by the Supreme Court.

(b) The fact that the Central Government issued a notification dated

September 08, 1994 prohibiting employment of contract labour to perform

the jobs in ONGC as being performed by petitioners is of no avail to the

LPA No.654/2010 Page 24 of 44

petitioners for said notification ipso facto does not regularize the services of

contract labour.

(c) Nothing turns upon the fact that ONGC continued to engage the

petitioners even after dismissal of earlier writ petitions filed by them before

the High Courts of Himachal Pradesh and Punjab and Haryana.

(d) Mere grant of liberty by the Supreme Court to the petitioners to

approach the High Court of Delhi did not entitle the petitioners to re-litigate

their claim for regularization of services, because the Supreme Court had

granted said liberty without going into the maintainability or otherwise of

the writ petition.

(e) The working Paper dated July 24, 1998 relied upon by the petitioners

does not appear to indicate that ONGC did not have work for the petitioners

in the year 1998 and therefore it would be of no avail to the petitioners if the

recommendations contained in said paper were accepted by the competent

authority and additionally for the reason that it appeared that the same was

not accepted by the competent authority.

(f) The relief of regularization of services cannot be granted to the

petitioners in view of the dictum of law laid down by the Constitution Bench

of the Supreme Court in Uma Devi’s case (supra) because:- (i) courts have

no power to grant the relief of regularization of services of persons engaged

temporarily and on daily wages and without complying with the recruitment

rules and regulations; and (ii) courts, out of considerations of sympathy or

injustice or equity, cannot impose illegally appointed casual workmen on the

organization through the backdoor of initial causal employment and in

breach of recruitment rules and regulations of the organization, howsoever

long workmen may have worked with the organization.

LPA No.654/2010 Page 25 of 44

(g) The very nomenclature of the employment of the petitioners i.e.

contingent employment shows that the employment of the petitioners was

subject to the contingency. The petitioners only have a right to be considered

for conversion as a regular employee under relevant Standing Orders, which

conversion is subject to possibility of a post/vacancy. It was unequivocally

held in the orders dismissing earlier writ petitions filed by the petitioners

that there was no post or vacancy at that time on/in which the petitioners

could be accommodated. Save and except Working Paper dated July 24,

1998, nothing has been shown by the petitioners in the present petition that

there is any post/vacancy on/in which the petitioners can be absorbed. On

the contrary, it is borne out of the counter affidavit filed by ONGC as also

judgments relied upon by ONGC that work of ONGC in Northern Region

has been dwindling; ONGC is overstaffed and resorting to voluntary

retirement schemes. In such circumstances, the petitioners cannot be

imposed upon ONGC when ONGC has no job or work for the petitioners.

(h) The argument advanced by the petitioners that bar of regularization of

services of workmen contained in Umadevi’s case (supra) does not apply in

cases the courts finds the circumstances to be extraordinary or an unfair

labour practice being followed by employer is not tenable.

(i) The reliance placed by the petitioners upon Standing Order dated June

15, 1962 to claim regularization of their services is wholly misplaced for the

reason said Standing Order was also in existence at the time when the earlier

writ petition filed by the petitioners seeking same relief of regularization of

their services were dismissed by High Court of Himachal Pradesh and

Punjab and Haryana.

(j) Nothing turns upon settlement dated September 23, 1989 arrived

LPA No.654/2010 Page 26 of 44

between ONGC and some of the petitioners for the reason the petitioners

have not been able to demonstrate that there has been any

violation/contravention of any of the terms of said settlement by ONGC.

30. Aggrieved by the aforesaid decision some of the petitioners before the

learned Single Judge have filed the present Letters Patent Appeal. (The

details of the petitioners who have filed the present appeal have already been

given by us in the table drawn by us in the foregoing paragraphs).

32. In the present appeal, the appellants (petitioners before the learned

Single Judge) as also ONGC have reiterated their respective stands taken by

them before the learned Single Judge.

33. From the aforesaid conspectus of facts, it is evident that following two

questions arise for consideration in the present appeal:-

I Whether the appellants were precluded from instituting the writ

petition in question before of this Court owing to the fact that earlier writ

petitions filed by them seeking same relief of regularization of services as

claimed in the petition instituted in this Court were dismissed by High

Courts of Himachal Pradesh and Punjab and Haryana, particularly when said

dismissal orders had attained finality?

II Whether the appellants are entitled to relief of regularization of their

services claimed by them?

In Re: Question I

34. The legal position as to when a decision on an issue of law will be

res-judicata in a subsequent proceeding between the same parties has been

succinctly stated by the Supreme Court in the decision reported as JT 1995

(7) SC 69 Nand Kishore vs. State of Punjab in the following terms:-

“On another facet of res judicata, this Court in Mathura Prasad

LPA No.654/2010 Page 27 of 44

Bajoo Jaiswal & Ors. Vs. Dossibai N.B. Jeejeebhoy [1970(3)

SCR 830] had the occasion to observe as under: "A pure

question of law unrelated to facts which give rise to a right,

cannot be deemed to be a matter in issue....... A decision on an

issue of law will be res judicata in a subsequent proceeding

between the same parties, if the cause of action of the

subsequent proceeding be the same as in the previous

proceedings, but not when the cause of action is different, nor

when the law has since the earlier decision been altered by a

competent authority, nor when the decision relates to the

jurisdiction of the Court to try the earlier proceeding, nor when

the earlier decision declares valid a transaction which is

prohibited by law.” (Emphasis Supplied)

35. From the aforesaid decision, it is clear that a decision on an issue of

law will not operate as res-judicata in a subsequent proceeding between the

same parties in following two situations:-

(a) When the cause of action in subsequent proceeding is different from

the cause of action in previous proceeding; and

(b) When the law has since the earlier decision has been altered by a

competent authority.

36. The expressions 'cause of action' is neither defined in the Constitution

nor has it been defined in the Code of Civil Procedure. Mulla, in the

commentary on the Code of Civil Procedure Vol.1 (15th Edition) at page

251 has stated: 'A cause of action means every fact, which, if traversed, it

would be necessary for the plaintiff to prove in order to support his right to

a judgment of the court. In other words it is the bundle of facts which taken

with the law applicable to them gives the plaintiff a right to relief against the

defendant. It must include some act done by the defendant since in the

absence of such an act no cause of action can possibly accrue. It is not

LPA No.654/2010 Page 28 of 44

limited to the actual infringement of the right sued on but includes all the

material facts on which it is founded.’

37. The classic definition of a cause of action was given by Brett, J. in the

decision reported as (1873) LR A CP 107 Cooke Vs. Gill : 'Cause of action

has been held from the earliest time to mean every fact which is material to

be proved to entitle the plaintiff to succeed - every fact which the defendant

would have a right to traverse.’

38. A different facet thereof, but in our opinion a guiding star, could be

the opinion of Diplock LJ. in the decision reported as (1964) 2 All ER 929

Letang Vs. Cooper : 'a cause of action is simply a factual situation the

existence of which entitles one person to obtain from the court a remedy

against another person.’

39. The words used by the two learned Judges may be different, but bring

out that only those facts which are material to be proved are to be taken into

account ignoring pleadings of unnecessary allegations or the addition of

further instances with reference to better particulars. To put it differently,

one may say that incidental facts, which may be explanatory of the material

facts, have to be overlooked. The facts pleaded for purposes of cause of

action must have a nexus on the basis whereof a prayer can be granted.

Those facts which have nothing to do with the prayer made therein are not a

part of a cause of action.

40. But the problem lies because the selection of the material facts to

define the cause of action has to be made at the highest level of abstraction.

41. A right to sue accruing has not to be confused with the cause of

LPA No.654/2010 Page 29 of 44

action. The wrong alleged, when committed, infringing upon a right would

give rise to a right to sue. The entire bundle of facts attracting the relevant

law which need to be proved, upon being traversed by the opposite party,

would be the bundle of facts constituting the cause of action.

42. As already noted hereinabove, in the year 1993 some of the appellants

had filed writ petitions seeking relief of regularization of their services

before the High Court of Himachal Pradesh and some before High Court of

Punjab and Haryana. At that time i.e. in the year 1993, the appellants were

facing imminent threat of retrenchment of their services as Jwalamukhi

project undertaken by ONGC for which appellants were initially engaged

came to an end constraining the appellants to file writ petitions before High

Courts of Himachal Pradesh and Punjab and Haryana.

43. Vide judgment dated September 21, 1993 the High Court of Himachal

Pradesh dismissed the petition filed by the appellants with the directions that

‘ONGC would consider the case of the appellants for re-engagement as and

when some kind of work is available with ONGC in northern region and that

preference would be given to appellants according to their seniority and job

requirement’. While so dismissing, High Court of Himachal Pradesh noted

the stand of ONGC that ONGC is preparing a list of workers which are

being retrenched and that no work is available with ONGC to continue with

the services of the appellants.

44. Vide order dated September 27, 1993 the High Court of Punjab and

Haryana also dismissed the petition filed by some of the appellants.

45. What happened thereafter is most significant.

46. The appellants, who were initially engaged for Jwalamukhi Project

were not retrenched by ONGC even after Jwalamukhi Project coming to an

LPA No.654/2010 Page 30 of 44

end. On the contrary, ONGC continued to engage the appellants at its

various locations viz. Jammu, Madhopur and Dehradun even after dismissal

of their writ petitions by the High Courts of Himachal Pradesh and Punjab

and Haryana. Most significantly, the aforesaid act of ONGC of continuing

with the services of appellants even after dismissal of their writ petitions by

High Courts of Himachal Pradesh and Punjab and Haryana falsified the

stand taken by ONGC before High Court of Himachal Pradesh that it is in

the process of retrenching with the services of appellants and that no work is

available with ONGC to continue with the services of the appellants. Had

that been the case, ONGC would have discontinued engaging the appellants

immediately after dismissal of their writ petitions by High Courts of

Himachal Pradesh and Punjab and Haryana.

47. In these circumstances, in the year 2001 (when the petition was filed

by the appellants in this Court) a fresh cause of action accrued to the

appellants when ONGC did not retrench the appellants and continued to

engage them at its various locations even after lapse of about eight long

years after dismissal of earlier writ petitions filed by appellants by High

Courts of Himachal Pradesh and Punjab and Haryana. As a necessary

corollary thereof, the appellants were not precluded from instituting

(second) writ petition before this Court based on different cause on action

vis-a-vis the first petition filed by them in view of the law laid down by the

Supreme Court in Nand Kishore’s case (supra). (We also note here that even

position of law relating to regularization of services of casual/contingent

workmen has undergone a sea change after dismissal of the earlier writ

petitions filed by the appellants before the High Courts of Himachal Pradesh

and Punjab and Haryana, and the same would entitle the appellants to

LPA No.654/2010 Page 31 of 44

institute a second writ petition in view of law laid down by the Supreme

Court in Nand Kishore’s case (supra) but we shall be dwelling on this aspect

of the matter in the later part of this judgment.)

In Re: Question II

48. The second question posed by us has to be answered with reference to

decision of Supreme Court reported as (2014) 7 SCC 190 Hari Nandan

Prasad & Ors. vs. Employer I/R to Management of Food Corporation &

Anr.

49. In Hari Nandan’s case (supra), taking note of the decision of the

Constitution Bench of the Supreme Court reported as (2006) 4 SCC 1 State

of Karnatka vs. Uma Devi, the Supreme Court held that what was perceived

to be a conflict in the law declared by the Supreme Court in the decision

reported as (2007) 5 SCC 755 U.P. Power Corporation Ltd. vs. Bijli

Majdoor Singh and the decision reported as (2009) 8 SCC 556 Maharashtra

SRTC vs. Casteribe Rajya Parivahan Karamchari Sanghatana, was an

incorrect perception and that a Labour Court or an Industrial Tribunal could

direct regularization upon proof that : „employer has indulged in unfair

labour practice by not filling up permanent posts even when available and

continuing to employ workers on temporary/daily-wage basis and taking the

same work from them and making them do some purpose which was being

performed by the regular workers but paying them much less wages.‟ The

observations of the Supreme Court in paragraphs 34 to 39 of the said

decision need to be noted. They read as under:-

“34. A close scrutiny of the two cases, thus, would reveal that

the law laid down in those cases is not contradictory to each

other. In U.P. Power Corporation, this Court has recognized

the powers of the Labour Court and at the same time

LPA No.654/2010 Page 32 of 44

emphasized that the Labour Court is to keep in mind that there

should not be any direction of regularization if this offends the

provisions of Art.14 of the Constitution, on which judgment in

Umadevi is primarily founded. On the other hand, in Bhonde

case, the Court has recognized the principle that having regard

to statutory powers conferred upon the Labour Court/Industrial

Court to grant certain reliefs to the workmen, which includes

the relief of giving the status of permanency to the contract

employees, such statutory power does not get denuded by the

judgment in Umadevi‟s case.

It is clear from the reading of this judgment that such a power

is to be exercised when the employer has indulged in unfair

labour practice by not filling up the permanent post even when

available and continuing to workers on temporary/daily wage

basis and taking the same work from them and making them

some purpose which were performed by the regular workers but

paying them much less wages. It is only when a particular

practice is found to be unfair labour practice as enumerated in

Schedule IV of MRTP and PULP Act and it necessitates giving

direction under Section 30 of the said Act, that the Court would

give such a direction.

35. We are conscious of the fact that the aforesaid judgment is

rendered under MRTP and PULP Act and the specific

provisions of that Act were considered to ascertain the powers

conferred upon the Industrial Tribunal/Labour Court by the

said Act. At the same time, it also hardly needs to be

emphasized the powers of the industrial adjudicator under the

Industrial Disputes Act are equally wide. The Act deals with

industrial disputes, provides for conciliation, adjudication and

settlements, and regulates the rights of the parties and the

enforcement of the awards and settlements. Thus, by

empowering the adjudicator authorities under the Act, to give

reliefs such as a reinstatement of wrongfully dismissed or

discharged workmen, which may not be permissible in common

law or justified under the terms of the contract between the

employer and such workmen, the legislature has attempted to

LPA No.654/2010 Page 33 of 44

frustrate the unfair labour practices and secure the policy of

collective bargaining as a road to industrial peace.

36. In the language of Krishna Iyer, J:The Industrial Disputes

Act is a benign measure, which seeks to pre-empt industrial

tensions, provide for the mechanics of dispute resolutions and

set up the necessary infrastructure, so that the energies of the

partners in production may not be dissipated in counter-

productive battles and the assurance of industrial justice may

create a climate of goodwill.” (Life Insurance Corpn. Of India

v. D.J.Bahadur 1980 Lab IC 1218, 1226(SC), per Krishna

Iyer,J.).

In order to achieve the aforesaid objectives, the Labour

Courts/Industrial Tribunals are given wide powers not only to

enforce the rights but even to create new rights, with the

underlying objective to achieve social justice. Way back in the

year 1950 i.e. immediately after the enactment of Industrial

Disputes Act, in one of its first and celebrated judgment in the

case of Bharat Bank Ltd. V. Employees of Bharat Bank Ltd.

[1950] LLJ 921,948-49 (SC) this aspect was highlighted by the

Court observing as under:

“In settling the disputes between the employers

and the workmen, the function of the tribunal is not

confined to administration of justice in accordance

with law. It can confer rights and privileges on

either party which it considers reasonable and

proper, though they may not be within the terms of

any existing agreement. It has not merely to

interpret or give effect to the contractual rights

and obligations of the parties. It can create new

rights and obligations between them which it

considers essential for keeping industrial peace.”

37. At the same time, the aforesaid sweeping power conferred

upon the Tribunal is not unbridled and is circumscribed by this

Court in the case of New Maneckchowk Spinning & Weaving

LPA No.654/2010 Page 34 of 44

Co.Ltd.v. Textile Labour Association [1961] 1 LLJ 521,526

(SC) in the following words:

“This, however, does not mean that an industrial

court can do anything and everything when

dealing with an industrial dispute. This power is

conditioned by the subject matter with which it is

dealing and also by the existing industrial law and

it would not be open to it while dealing with a

particular matter before it to overlook the

industrial law relating to the matter as laid down

by the legislature or by this Court.”

38. It is, thus, this fine balancing which is required to be

achieved while adjudicating a particular dispute, keeping in

mind that the industrial disputes are settled by industrial

adjudication on principle of fair play and justice.

39. On harmonious reading of the two judgments discussed in

detail above, we are of the opinion that when there are posts

available, in the absence of any unfair labour practice the

Labour Court would not give direction for regularization only

because a worker has continued as daily wage

worker/adhoc/temporary worker for number of years. Further,

if there are no posts available, such a direction for

regularization would be impermissible. In the aforesaid

circumstances giving of direction to regularize such a person,

only on the basis of number of years put in by such a worker as

daily wager etc. may amount to backdoor entry into the service

which is an anathema to Art.14 of the Constitution. Further,

such a direction would not be given when the concerned worker

does not meet the eligibility requirement of the post in question

as per the Recruitment Rules However, wherever it is found that

similarly situated workmen are regularized by the employer

itself under some scheme or otherwise and the workmen in

question who have approached Industrial/Labour Court are at

par with them, direction of regularization in such cases may be

legally justified, otherwise, non-regularization of the left over

LPA No.654/2010 Page 35 of 44

workers itself would amount to invidious discrimination qua

them in such cases and would be violative of Art.14 of the

Constitution. Thus, the Industrial adjudicator would be

achieving the equality by upholding Art. 14, rather than

violating this constitutional provision.

40. The aforesaid examples are only illustrated. It would

depend on the facts of each case as to whether order of

regularization is necessitated to advance justice or it has to be

denied if giving of such a direction infringes upon the

employer‟s rights.” (Emphasis Supplied)

50. In the decision reported as (2015) 5 SCALE 353 ONGC Ltd. vs.

Petroleum Coal Labour Union & Ors, wherein the Supreme Court was

specifically dealing with regularization of services of some temporary

workmen employed by ONGC, after examining the relevant facts and case

law on the point, including Standing Orders issued by ONGC dealing with

temporary workmen, the Supreme Court directed ONGC to regularize the

services of temporary workmen. The relevant observations made by the

Supreme Court are as under:-

“The Central Government in exercise of its powers under

Section 10 of the Act referred the existing Industrial Dispute

between the concerned workmen and the Corporation to the

Tribunal which rightly adjudicated point (i) of the dispute

(supra) on the basis of the facts, circumstances and evidence

on record and passed an award dated 26.5.1999 directing the

Corporation that the services of the concerned workmen

should be regularised with effect from the date on which all of

them completed 480 days, subsequent to their appointment by

the memorandum of appointment. The contention urged on

behalf of the Corporation that the Tribunal has no power to

pass such an award compelling the Corporation to regularise

the services of the concerned workmen is wholly untenable in

law. Even if Page 22 22 we consider the same, the said

LPA No.654/2010 Page 36 of 44

contention is contrary to the legal principles laid down by this

Court in the case of Hari Nandan Prasad & Anr. v. Employer

I/R To Management of Food Corporation of India & Anr.6,

wherein the decisions in U.P. Power Corporation v. Bijli

Mazdoor Sangh & Ors. and Maharashtra Road Transport

Corporation v. Casteribe Rajya Parivahan Karamchari

Sanghathana and Uma Devi (all referred to supra) were

discussed in detail. The relevant paragraphs are extracted

hereunder:

….

It is clear from the above that the Court recognized the

underlying message contained in Umadevi case to the effect

that regularisation of a daily-wager, who has not been

appointed after undergoing the proper selection procedure,

etc. is impermissible as it was violative of Article 14 of the

Constitution of India and this principle predicated on Article

14 would apply to the Industrial Tribunal as well inasmuch as

there cannot be any direction to regularise the services of a

workman in violation of Article 14 of the Constitution. As we

would explain hereinafter, this would mean that the Industrial

Court would not issue a direction for 23regularising the

services of a daily-wage worker in those cases where such

regularisation would tantamount to infringing the provisions

of Article 14 of the Constitution. But for that, it would not deter

the Industrial Tribunals/Labour Courts from issuing such

direction, which the industrial adjudicators otherwise possess,

having Page 24 24 regard to the provisions of the Industrial

Disputes Act specifically conferring such powers. This is

recognized by the Court even in the aforesaid judgment.

…..

Detailed reasons are given in support of the conclusion stating

that the MRTU and PULP Act provides for and empowers the

Industrial/Labour Courts to decide about the unfair labour

practice committed/being committed by any person and to

declare a particular practice to be unfair labour practice if it

so found and also to direct such person to cease and desist

from unfair labour practice. The provisions contained in

Section 30 of the MRTU and PULP Act giving such a power to

LPA No.654/2010 Page 37 of 44

the Industrial and Labour Courts vis-à-vis the ratio of

Umadevi are explained by the Court in the following terms:

(Maharashtra SRTC case, SCC pp. 573-74, paras 32-33 & 36)

…..

Further, it is very clear from the facts that all the concerned

workmen have got the qualifications required for their

regularisation, except one of them and have been employed by

the Corporation even prior to 1985 in the posts through

various irregular means. The Tribunal has got every power to

adjudicate an industrial dispute and impose upon the employer

new obligations to strike a balance and secure industrial peace

and harmony between the employer and workmen and

ultimately deliver social justice which is the constitutional

mandate as held by the Constitution Bench of this Court in a

catena of cases. This above said legal principle has been laid

down succinctly by this Court in the case of The Bharat Bank

Ltd., Delhi v. The Employees of the Bharat Bank Ltd., Delhi &

the Bharat Bank Employee‟s Union, Delhi7, the relevant

paragraph of the said case is extracted hereunder:

….

Thus, the powers of an Industrial Tribunal/Labour Court to

adjudicate the industrial dispute on the points of dispute

referred to it by the appropriate government have been well

established by the legal principles laid down by this Court in a

catena of cases referred to supra. Therefore, the Tribunal has

rightly passed an award directing the Corporation to

regularise the services of the concerned workmen.

….

It is also contended on behalf of the Corporation that the right

to be considered for regularisation by the Corporation as

provided under Clause 2(ii) of the Certified Standing Orders of

the Corporation does not mean right to regularisation and the

discretion to regularise the workmen is with the Corporation

as the same has to be exercised keeping in mind the interest of

the organization by implementing the alleged “policy

decision” of appointing the CISF personnel to the security

posts. This contention urged on behalf of the Page 32 32

learned senior counsel for the Corporation cannot be accepted

LPA No.654/2010 Page 38 of 44

by us for the reason that even though due procedure was not

followed by the Corporation for the appointment of the

concerned workmen, this does not disentitle them of their right

to seek regularisation of their services by the Corporation

under the provisions of the Certified Standing Orders, after

they have rendered more than 240 days of service in a

calendar year from the date of the memorandum of

appointment issued to each one of the concerned workmen in

the year 1988. The alleged “policy decision” to appoint CISF

personnel to the security post is on deputation basis and

cannot be called appointment per se. Whereas, the concerned

workmen have acquired their right to be regularised under the

provision of Clause 2(ii) of the „Certified Standing Orders for

Contingent Employees of the Oil and Natural Gas

Commission‟, which states thus:

….

The above emphasised portion of Clause 2(ii) of the Certified

Standing Orders states that a temporary workman who has put

in not less than 240 days of attendance in any calendar period

of 12 consecutive months, which is actually contrary to the

provision under Section 25B(2)a of the Act, which states that a

workman shall be deemed to be in continuous service under an

employer for a period of one year, if the workman, during a

period of twelve calendar months preceding the date with

reference to which calculation is to be made, has actually

worked under the employer for not less than one hundred and

ninety days in the case of a workman employed below ground

in a mine and two hundred and forty days in any other case. In

any case, it is clear that the concerned workmen have clearly

completed more than 240 days of services subsequent to the

memorandum of appointment issued by the Corporation in the

year 1988 in a period of twelve calendar months, therefore,

they are entitled for regularisation of their services into

permanent posts of the Corporation as per the Act as well as

the Certified Standing Orders of the Corporation.

…..

Further, it was contended by the learned senior counsel that

the Certified Standing Orders of the Corporation do not apply

LPA No.654/2010 Page 39 of 44

to the concerned workmen to claim regularisation in their

posts as regular employees as provided under Clause 2(ii) of

the Page 49 49 Certified Standing Orders of the Corporation.

The said contention is wholly untenable in law as the Standing

Orders of the Corporation certainly apply to the concerned

workmen as they have been rendering their services in the

Corporation even prior to the year 1985, being appointed

through contractors, the Cooperative Society and directly

thereafter vide memorandum of appointment in the year 1988

by issuing appointment orders on different dates during that

year on the condition that the Certified Standing Orders of the

ONGC will not be applicable to them. Such a condition

incorporated in the appointment orders issued to the

concerned workmen is not valid in law and the same is void for

the reason that they are workmen for the purpose of the

Certified Standing Orders and therefore, the above said

condition has to be ignored. When the concerned workmen

were appointed by issuing the memorandum of appointment to

work in the posts of the Corporation, providing them with

monthly salaries, it cannot arbitrarily and unilaterally state

that the Certified Standing Orders of the Corporation are not

applicable to the concerned workmen. The concerned workmen

cannot be denied their legitimate, statutory and fundamental

right to be regularised in their posts as provided under Clause

2 (ii) of the Certified Standing Orders on the basis of the above

said contention urged on their behalf and also because the

Corporation did not follow the due procedure as provided

under the Appointment and Recruitment Rules for appointment

of the concerned workmen in the Corporation. The said

contention urged by the learned senior counsel on behalf of the

Corporation is an afterthought to justify their irregular act of

appointing them as temporary workmen and continuing them

as such for a number of years though they are entitled for

regularisation under Clause 2(ii) of the Standing Orders of the

Corporation, which action of it amounts to an unfair labour

practice as defined under Section 2(ra) of the Act, read with

the provisions of Sections 25T and 25U of the Act, which

prohibits such employment in the Corporation. It would be

LPA No.654/2010 Page 40 of 44

unjust and unfair to deny them regularisation in their posts for

the error committed by the Corporation in the procedure to

appoint them in the posts. Further, the Corporation cannot use

the alleged “policy decision” as a veil to justify its action

which included inaction on its part in not regularising the

concerned workmen in their services under Clause 2(ii) of the

Certified Standing Orders.

39. In light of the above said discussion and legal principles

laid down by this Court in the cases referred to supra, we are

of the considered view that the procedure of appointments

adopted by the Corporation with respect to the concerned

workmen initially appointed through contractors, subsequently

through the Co-operative Society, and then vide memorandum

of appointment issued to each one of the concerned workmen

in the year 1988 and thereafter, continuing them in their

services in the posts by the Corporation without following any

procedure as contended by the learned senior counsel on

behalf of the Corporation whose contention is untenable in law

and their appointment can be said as irregular appointments

but not as illegal as the same was not objected to by any other

Authority of the Corporation at any point of time. But their

appointment in their posts and continuing them in their

services is definitely cannot be termed as illegal, at best it can

be called irregular. Therefore, the Certified Standing Orders

of the Corporation by all means apply to the concerned

workmen. The legal contention urged on behalf of the

Corporation that the statutory right claimed by the concerned

workmen under Clause 2(ii) of the Certified Standing Orders

of the Corporation for regularizing them in their posts as

regular employees after rendering 240 days of service in a

calendar is not an absolute right conferred upon them and

their right is only to consider their claim. This plea of the

learned senior counsel cannot again be accepted by us for the

reason that the Corporation is bound by law to take its

decision to regularise the services of the concerned workmen

as regular employees as provided under Clause 2(ii) of the

Certified Standing Orders after their completion of 240 days of

LPA No.654/2010 Page 41 of 44

service in a calendar year as they have acquired valid

statutory right. This should have been positively considered by

the Corporation and granted the status of regular employees of

the Corporation for the reason that it cannot act arbitrarily

and unreasonably deny the same especially it being a

Corporate Body owned by the Central Government and an

instrumentality of the State in terms of Article 12 of the

Constitution and therefore, it is governed by Part III of the

Constitution. The Corporation should exercise its power fairly

and reasonably in accordance with law. This has not been

done by the Corporation as per the law laid down by this

Court in the case of Olga Tellis & Ors. v. Bombay Municipal

Corporation and Ors.12 wherein it was held as under:-

…..

….The said contention of the learned senior counsel on behalf

of the Corporation is wholly untenable in law and the reliance

placed on the aforesaid case is misplaced for the reason that it

is an undisputed fact 13 (2011) 9 SCC 775 that the workmen

have been appointed on term basis vide memorandum of

appointment issued to each one of the concerned workmen in

the year 1988 by the Corporation who continued their services

for several years. Thereafter, they were denied their legitimate

right to be regularised in the permanent posts of the

Corporation. The said fact was duly noted by the High Court

as per the contention urged on behalf of the Corporation and

held on the basis of facts and evidence on record that the same

attracts entry Item No.10 of Schedule V of the Act, in

employing the concerned workmen as temporary employees

against permanent posts who have been doing perennial

nature of work and continuing them as such for number of

years. We affirm the same as it is a clear case of an unfair

labour practice on the part of the Corporation as defined

under Section 2(ra) of the Act, which is statutorily prohibited

under Section 25T of the Act and the said action of the

Corporation warrants penalty to be imposed upon it under

Section 25U of the Act. In fact, the said finding of fact has been

recorded by both the learned single Judge and the Division

Bench of the High Court in the impugned judgment on the

LPA No.654/2010 Page 42 of 44

ground urged on behalf of the Corporation. Even if, this Court

eschews the said finding and reason recorded in the impugned

judgment accepting the hyper technical plea urged on behalf of

the Corporation that there is no plea of unfair labour practice

made in the claim statement, this Court in this appeal cannot

interfere with the award of the Tribunal and the impugned

judgment and order of the High Court for the other reasons

assigned by them for granting relief to the concerned

workmen. Even in the absence of plea of an act of unfair

labour practice committed by the Corporation against the

concerned workmen, the Labour Court/High Court have got

the power to record the finding of fact on the basis of the

record of the conciliation officer to ensure that there shall be

effective adjudication of the industrial dispute to achieve

industrial peace and harmony in the industry in the larger

interest of public, which is the prime object and intendment of

the Industrial Disputes Act. This principle of law has been well

established in a catena of cases of this Court. In the instant

case, the commission of an unfair labour practice in relation to

the concerned workmen by the Corporation is ex-facie clear

from the facts pleaded by both the parties and therefore, the

courts have the power to adjudicate the same effectively to

resolve the dispute between the parties even in the absence of

plea with regard to such an aspect of the case.” (Emphasis

Supplied)

51. A close perusal of the facts of the instant case shows that following

unfair labour practices have been committed by ONGC with respect to the

appellants:-

(a) ONGC continued to engage the appellants for several years after

Jwalamukhi project for which petitioners were initially engaged came to an

end.

(b) The stand taken by ONGC before Himachal Pradesh High Court to

deny relief of regularization of their services claimed by ONGC that ONGC

LPA No.654/2010 Page 43 of 44

is in the process of retrenching the appellants and no work is available with

ONGC to continue with services of appellants was most fallacious inasmuch

as ONGC continued to engage the appellants even several years after the

dismissal of earlier petitions filed by appellants by High Court of Himachal

Pradesh. Further, sufficient work was available with ONGC to continue with

the services of appellants is also evidenced from various Working Papers,

office notings and office orders etc. relied upon by the appellants,

particularly from the Working Paper dated July 24, 1998 noted by us in the

foregoing paras.

(c) ONGC was tossing the appellants from its one location to another as

per its requirement. (Initially the appellants were employed in connection

with Jwalamukhi project and were later transferred to Jammu and Madhopur

when Jwalamukhi project came to end. Subsequently in the year 2004 some

of the appellants were transferred to Dehradun).

(d) The availability of permanent posts against which the appellants could

be regularized stands admitted by ONGC in the affidavit filed by it in

response to affidavit dated July 16, 2004 filed by appellants wherein it has

been stated by ONGC that contingent employees who were junior to the

appellants were permanently recruited in ONGC. The aforesaid act of

ONGC of permanently recruiting juniors of appellants was patently illegal in

view of Standing Orders issued by ONGC prescribing consideration of

contingent employees who had put in more than 240 days of service in

twelve consecutive months for regularization on occurrence of a vacancy

and settlement dated September 23, 1989 arrived between some of the

appellants and ONGC as per which ONGC was to give preference to

appellants at the time of making recruitment to class III and IV posts in

LPA No.654/2010 Page 44 of 44

ONGC. (In ONGC’s case (supra), it was categorically held by Supreme

Court that Standing Orders issued by ONGC dealing with regularization of

casual/contingent workers cannot be thrown to winds by ONGC).

(e) A conjunctive reading of Working Papers dated June 10, 2005 and

January 03, 2006 noted herein above brings out that in the year 2004 ONGC

transferred some of the appellants from Jammu to Frontier Basin, Dehradun

and subsequently sought to retrench said appellants on the ground that they

i.e. appellants are surplus at Dehradun. However, at the same time the work

was available with ONGC at Jharna, a site in Frontier Basin at Dehradun.

52. In view of above unfair labour practices committed by ONGC, the

appellants are entitled to regularization of their services in view of law laid

down by Supreme Court in Hari Nandan and ONGC’s cases (supra).

53. We therefore allow the appeal and set aside the impugned judgment

and order dated June 01, 2010. We allow the writ petition filed by the

appellant with a direction to ONGC to regularize the services of the

appellant in terms of standing order dated July 15, 1962.

54. We leave the parties to bear their own costs all throughout.

(PRADEEP NANDRAJOG)

JUDGE

(MUKTA GUPTA)

JUDGE

OCTOBER 12, 2015 mamta